R (oao Eley) v SS for Communities and Local Gov & others

Transcript date:

Thursday, April 2, 2009

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Williams J

Transcript file:

Neutral Citation Number: [2009] EWHC 660 (QB)

Case No: CO/2910/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 2 April 2009

Before :

THE HONOURABLE MR JUSTICE WYN WILLIAMS
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Between :

ELIZABETH ELEY
Claimant
- and -

(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

(2) WATFORD BOROUGH COUNCIL

(3) VISAO LIMITED

 

 

Defendants

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- - - - - - - - - - - - - - - - - - - - -

Emma Dixon (instructed by Messrs Richard Buxton Environmental and Public Law Solicitors) for the Claimant
Richard Kimblin (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
The Third Defendant was represented by its Managing Director Mr Innes Gray

Hearing dates: 2-3 February 2009
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HONOURABLE MR JUSTICE WYN WILLIAMS

Mr Justice Wyn Williams :

1. On 8 May 2007 the Third Defendant applied to the Second Defendant for full planning permission for the erection of 11 dwellings upon an area of land described in the application as "Land at 154 Ridge Lane, and rear of 271, 273 and 275 Gammons Lane, Watford" (hereinafter referred to as "the appeal site"). The application form specified that the Third Defendant did not own or control any adjoining land. The application was supported by a document entitled Planning and Sustainability Statement and, apparently, by a further document known as Phase 1 Ecology Assessment.

2. The application generated objections from local residents. The objections were wide-ranging. In a letter dated 19 June 2007 the Third Defendant, by its planning consultant, responded to the objections which had been raised. In paragraph 5 under the heading Trees/Wildlife the consultant wrote:-

"In this regard it is not considered necessary to add to the conclusions set out in the submitted Phase 1 Ecology Assessment which concluded that the site is not considered to be of high intrinsic ecological value given the lack of suitable habitat within the site. A phase 2 survey could be secured by way of planning condition and in any case the developer would have to have regard to protection set out under non-planning legislation, specifically the Wildlife and Countryside Act 1991 and the Habitats Regulations 1994."

In paragraph 7 under the heading ‘Creeping development' the consultant stated:-

"It is alleged that the developer is deliberately phasing the development relative to land immediately east of the application site (land rear of 263-267 Gammons Lane) in order to avoid contributing towards affordable housing. This is simply not the case as the Applicant has no control over this neighbouring land and it would therefore be wholly unreasonable for it to be suggested that deliberate phasing is taking place. In any case the current threshold for affordable housing remains 25 dwellings or more and it is not considered that an additional 14 plus units could be achieved on this neighbouring land."

3. Six days prior to the writing of this letter the Third Defendant had concluded a legally enforceable option to purchase land at the rear of 267 Gammons Lane.

4. Shortly before the date upon which the planning application was due to be considered (19 July 2007) the planning consultant commissioned a report from a company known as Ecology Consultancy Limited. The company was instructed to undertake an examination of a suspected outlier badger sett in the grounds of 273 Gammons Lane. On 17 July 2007 Ms Rachel Ansell conducted a site visit and she produced a report on the following day which was submitted immediately to the Second Defendant. Her conclusion was that there was no evidence of badger activity within the appeal site.

5. A report to the Second Defendant's planning committee was prepared by its Development Manager in readiness for the meeting of the committee which was scheduled for 19 July 2007. In summary the report recommended refusal of planning permission. Under the heading "Conservation and Wildlife" the Development Manager wrote:-

"The application was referred to Council's Conservation and Development officer who provided the following comments:

On visiting the above site I noted an outlier badger sett on the southern edge of the garden of 273 Gammons Lane. It is right in the corner, almost on the boundary of 271 Gammons Lane. In addition, there appears to be a badger run along the entire southern edge of the proposed development...... The fact that the badgers use this corridor on a regular basis and have a small ("outlier") sett here means that I recommend that the integrity of the corridor is protected within the development.

I also recommend that further surveys are undertaken, specifically to confirm the presence of badgers, ......."

6. It appears from the above that the planning committee had conflicting information before it about badger activity when it considered the application. In any event it refused the application for permission. The decision notice is dated 19 July 2007. Six reasons were given for the refusal - none of them related to ecological considerations.

7. On 31 July 2007 the Third Defendant purchased land at the rear of both 263 and 265 Gammons Lane. In the remainder of this judgment where appropriate this area of land together with the area which is the subject of the option is referred to as "the additional land."

8. On 28 September 2007 the Third Defendant appealed against the Second Defendant's decision to refuse planning permission. The Third Defendant, by its planning consultant, submitted substantial documentation to the Planning Inspectorate (the body appointed by the First Defendant to process appeals). One of the documents sent was the notice of appeal; this is a standard form document which must be completed. The notice of appeal specifies that a number of documents must be sent with the notice. One of the documents to be sent is a site plan which must show:

"......... the general location of the proposed development and its boundary. This plan should show two named roads so as to assist the location of the appeal site or premises. The application site should be edged or shaded in red and any other adjoining land owned or controlled by the Appellant (if any) edged or shaded in blue."

9. A notice of appeal also asks the Appellant to choose the procedure by which the appeal should be conducted. The notice specifies three possibilities; (a) written representations, (b) hearings and (c) inquiries. In its notice of appeal the Third Defendant chose written representations. I will describe the procedure which was thereby triggered below.

10. On 4 October 2007 the Third Defendant's planning consultant instructed a firm known as "ELMAW Consulting" (hereinafter referred to as "ELMAW") to undertake a further assessment as to whether or not there was evidence of badger activity upon the appeal site. Apparently confirmation of badger activity was found in the days or weeks that followed. In consequence on 7 November 2007 the planning consultant formally instructed ELMAW to provide a written report upon the issue. These instructions were given because the Third Defendant was actively contemplating submitting a second application for planning permission in respect of the same area of land but with a reduced number of dwellings.

11. On 22 November 2007 the Third Defendant submitted a second planning application to the Second Defendant ("the second application"). This application related to the appeal site, as I understand it, but it sought permission for 9 dwellings as opposed to the 11 specified in the application under appeal.

12. By letter dated 13 December 2007 ELMAW wrote to the Third Defendant's planning consultant to provide an update on the work being undertaken in relation to the existence of badgers on the appeal site. The salient parts of the letter were as follows:-

"ELMAW Consulting are currently undertaking a badger impact assessment at Gammons Road, Watford; it was confirmed by ELMAW Consulting that a single entrance hole outlier badger sett was present in the rear garden of no. 273, Gammons Road and therefore an impact assessment has been commissioned to evaluate the impact the proposed development may have upon badgers and their sett in respect to their legally protected status and welfare".

The letter then went on to describe various aspects of the assessment which was being undertaken and concluded:

"Once we have identified the main sett and confirmed the functionality of the existing outlier sett and use of the rear gardens of the properties proposed for the development by the badgers, we will be in a position to advise what impacts the development may have upon badger functionality and their outlier sett, and what mitigation measures are necessary to protect both the badgers and their sett in compliance with The Protection of Badgers Act 1992."

13. On 21 December 2007 Mr Gray, the Managing Director of the Third Defendant, sent an email to the Second Defendant's Development Manager. The email related to details of the second application. It also informed him, however, that the Third Defendant was obtaining additional information and a report on the badger situation.

14. On 4 January 2008 the Third Defendant's planning consultant wrote a detailed letter to the Second Defendant in respect of the second planning application. It contained this paragraph:-

"Finally in respect of Badgers the survey work on site with camera has now been completed. Our consultant is awaiting further records from the local Badger Group (should arrive within a week), but is already able to conclude categorically that the sett on site is an outlier only occasionally visited (NOT a main sett). Furthermore whilst the sett could be closed, he believes it can actually be retained in its current position and a simple corridor for Badgers to travel to the main sett introduced (typically 1 metre wide). This will be at the end of the gardens as the sett is located at the southern boundary. Therefore a condition could require this corridor be introduced. There is in conclusion no impact on the Badgers or the development. Of course the mature tree screen predominantly in the rear gardens of the houses in Ridge Lane on the sloping bank also already assists movement of the badgers in any case. A formal report by the consultant will be produced in about 2 to 3 weeks time as soon as the records are forthcoming from the local Badger group."

15. On 21 January 2008 ELMAW wrote to the Third Defendant's planning consultant. The thrust of the letter was that there was a badger sett which was an outlier sett in the location previously identified; that badgers were moving through the rear gardens of Gammons Lane and, specifically, through the gardens of 271, 273 and 275 and that it was perfectly feasible in "practical and ecological terms" to retain and protect both the sett and the path during and after development.

16. As I have said, ELMAW had been instructed by the Third Defendant in connection with the second planning application. Nonetheless, it is common ground that the information about the existence of badgers upon the appeal site was potentially relevant to the determination of the appeal.

17. Purely coincidentally, the date fixed for a site visit by the Inspector appointed to determine that appeal was 22 January 2008. On that date the Inspector attended the appeal site and he was accompanied by Mr Gray and a representative of the Second Defendant. Mr Gray has produced a document entitled "Event Timetable" and, in relation to the site visit on 22 January 2008, the document reads:-

"Appeal Inspectors site visit - interim findings of ELMAW Consulting offered to Appeal Inspector. Appeal Inspector checks with Watford Planning Case Officer at site visit his opinion (officer not concerned since submitted after 9WK). Inspector concludes there was no firm evidence of Badger activity submitted by ‘either party' prior to 9 week deadline and accepting interim letter would not give 3rd party opportunity to comment. Commenting, "In any event planning permission granted on the site would not override the statutory protection afforded to badgers under other legislations".

No evidence has been adduced before me to suggest that Mr Gray's summary is in any sense inaccurate. By a decision dated 13 February 2008 and received by the Third Defendant on 16 February 2008 the Inspector allowed the Third Defendant's appeal against the Second Defendant's refusal of planning permission. In relation to the issues of badgers upon the site the Inspector said:-

"17. Although a number of Badger sightings have been reported by adjoining residents, and a suspected sett was identified by the Council, there is no conclusive evidence that the latter is now used by badgers, if indeed it ever was. The appellant's survey suggests not, and there is no firm contrary evidence or any objection from any other accredited body. But in any event any planning permission granted on the site would not override the statutory protection afforded to badgers under other legislation.

18. Whilst I accept that the wooded area along the site's southern boundary provides a potential movement corridor not only for badger but also for other kinds of wildlife, the embankment where the tree cover is heaviest is outside the appeal site and most of the habitat that this area offers would remain. In the circumstances, I conclude there is insufficient evidence of any adverse effect on wildlife to justify a refusal of planning permission." 
18. Shortly after the Third Defendant received the Inspector's decision it received a comprehensive report from ELMAW.

19. These proceedings are brought by the Claimant pursuant to section 288 Town and Country Planning Act 1990. She seeks an order quashing the planning permission which was granted by the Inspector by virtue of his decision of 13 February 2008. The Claimant submits that the permission falls to be quashed because the Third Defendant failed to disclose to the Inspector matters which materially undermine its case. She also submits that the decision should be quashed because the Inspector founded his decision upon a mistake as to an existing (and established) fact which was at least potentially material to his decision.

20. I heard oral submissions upon these issues during the course of two days. Just as the oral submissions were coming to an end a specific factual point arose. The point was whether the Third Defendant had submitted a site plan to the Planning Inspectorate (as was required) and, further, whether it had indicated on that plan not just the appeal site but also any adjoining land which it owned or controlled.

21. I gave permission to the parties to investigate these factual issues and make further written representations on the basis of the information obtained. I should record that I have received a copy of the site plan which was submitted in support of the appeal. The plan shows that the appeal site was identified but that no adjoining land was identified as being within the ownership or control of the Third Defendant. I have received and considered the written submissions of the Claimant, First Defendant and Third Defendant in the light of the plan submitted to the Inspectorate.

Relevant Primary Legislation

22. It seems to me that the following provisions of the Town and Country Planning Act 1990 ("the 1990 Act") have a bearing upon the issues which I have to determine. Section 62 of the Act empowers the local planning authority to require an applicant for planning permission to provide evidence in support of the application. The terms of section 62 are widely drawn; in effect the local planning authority can require the applicant to provide evidence about anything it regards as relevant to the application. The local planning authority may grant permission for the development sought in the application either conditionally or unconditionally or it may refuse planning permission (section 70). Section 72(1) empowers a local planning authority to impose conditions on the grant of planning permission:-

"(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission;"

Section 78 of the 1990 Act creates a right of appeal in respect of a refusal by a local planning authority of an application for planning permission. Such an appeal is made to the First Defendant and it must be made by notice in prescribed form and within a prescribed period. The First Defendant's powers upon an appeal are contained within section 79 of the 1990 Act. Sub-section (1) reads:-

"(1) On an appeal under section 78 the Secretary of State may- 
(a) allow or dismiss the appeal, or 
(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not), 
and may deal with the application as if it had been made to him in the first instance."

23. Section 324 of the 1990 Act confers powers of entry upon duly authorised persons. The relevant parts read:-

"(1) Any person duly authorised in writing by the Secretary of State or by a local planning authority may at any reasonable time enter any land for the purpose of surveying it in connection with- 
(a) .............; 
(b) any application under Part III............."

The sections identified in the preceding paragraph all fall within part III of the 1990 Act.

The Written Representations Procedure

24. This procedure is governed by the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000. The Regulations apply where an Appellant informs the First Defendant that he wishes his appeal under section 78 Town and Country Planning Act 1990 to be disposed of on the basis of written representations. That is done by specifying the same in the notice of appeal which is sent to the First Defendant.

25. The first step in the written representation procedure thereafter is provided for by Regulation 4 which requires the First Defendant to advise the appellant and the local planning authority as soon as is practicable of, inter alia, "the starting date". The "starting date" is usually the date the notice of appeal is received by the First Defendant although a different date may be specified if appropriate. Regulation 5 provides that the local planning authority shall give written notice of the appeal within two weeks of the starting date to any person who made representations to the local planning authority about the application for planning permission.

26. Regulation 7 provides detailed provisions about the content of the written representations and the time by which they are to be served. Regulation 7(1) specifies that the notice of appeal and the documents accompanying it shall comprise the appellant's representations in relation to the appeal. Regulation 7(2) specifies that the local planning authority may elect to treat the questionnaire and documents submitted by the local planning authority to the First Defendant pursuant to Regulation 6 as their representations but, otherwise, the representations of the local planning authority must be submitted to the First Defendant within six weeks of the starting date (see Regulations 7(3)). Within the same six week time scale the appellant may make further representations; i.e. representations in addition to the representations constituted by his notice of appeal and supporting documents.

27. Regulation 7(7) provides that the appellant and local planning authority may submit comments on each other's representations to the First Defendant within nine weeks of the starting date. Regulation 7(8) is in the following terms:-

"The Secretary of State may disregard further information from the appellant and the local planning authority which was not submitted within 9 weeks of the starting date unless that further information has been requested by him."

28. Regulation 8 deals with representations made by third parties. Regulation 8(1) provides that interested persons shall submit representations to the First Defendant within 6 weeks of the starting date. The appellant and the local planning authority are given a period of not less than 2 weeks after submission of third party representations to comment upon the same.

29. Regulation 9 empowers the First Defendant to give directions setting later time limits than the ones set out above "in a particular case".

30. It is to be noted that the obligation upon the appellant, the local planning authority and third parties is to submit representations to the First Defendant. The First Defendant has the responsibility of distributing representations made by the local planning authority to the appellant. Further, it is the First Defendant who has the responsibility of distributing any representations made by third parties to the appellant and the local planning authority. As I read the Regulations the First Defendant is under no obligation to provide third parties with the written representations of an appellant and the local planning authority.

31. The only express obligation imposed upon the appellant in relation to the provision of information is that which is contained in Regulation 7(1). The notice of appeal, itself, demands the provision of certain categories of information. Further, identified categories of documents must be sent to the Planning Inspectorate on behalf of the First Defendant (see section 3 of the notice of appeal).

32. It is common ground that an Inspector who is conducting an appeal under the written representations procedure has the power to ask for further information from the appellant or the local planning authority. That power is not conferred expressly by any particular regulation but seems to me to be implicit by virtue of Regulation 7(8) and, also, it probably arises by virtue of section 79 of the 1990 Act in that the section permits the inspector to deal with the appeal as if the application had been made to him in the first instance. As I have said a local planning authority has an express statutory power to seek information which it regards as relevant (section 62 of the 1990 Act).

33. Circular 05/00: "Planning appeals procedures" makes it clear that the appeal process should be firmly grounded in the principles of "fairness, thoroughness and consistency".

The Alleged Obligation of Disclosure

34. Ms Dixon on behalf of the Claimant submits that the appellant in a planning appeal is under a duty to disclose to the inspector a matter materially undermining the case he has put forward. She submits that this obligation subsists from the moment in time when an appeal is launched to the date when the inspector delivers his decision. She accepts that there is no express statutory provision or provision within subordinate legislation which provides for the existence of such a duty. However, she submits that the duty arises by virtue of the principle of fairness. Put shortly, she submits that it would be unfair to those resisting an appeal if the appellant were to hide, either deliberately or even inadvertently, material which materially undermined his case. Mr Kimblin, on behalf of the First Defendant resists the existence of such a wide-ranging obligation.

35. I make it plain at the outset that I confine my determination of this issue to appeals which are conducted by the written representation procedure. This judgment does not deal, quite deliberately, with other forms of appeals and it should not be thought that my conclusions about general principles would necessarily be the same in relation to other procedures.

36. As formulated by Ms Dixon the obligation in relation to disclosure would exist not just in relation to documentary evidence which undermines an appellant's case. The obligation would also exist in relation to information which is known to the appellant although not contained within a document.

37. I deal firstly with the obligation, if any, to disclose documentation. As I said previously (paragraph 31 above) the appellant does have an obligation to disclose certain categories of documents. These documents are likely to contain factual information. On the front page of the notice of appeal the appellant is warned (in large and bold type) that a failure to provide the documents which are described as "essential supporting documents" within the time specified for appealing will mean that the appeal will not be accepted. The warning is repeated in that part of the notice of appeal in which the categories of documents are specified.

38. While it is possible that the documents specified may contain information which undermines an appellant's case it is unlikely that this will usually be the case. The only category of document which the appellant must disclose which is necessarily adverse to his case is the decision notice of the local planning authority.

39. It is obviously possible that the appellant will have documents in his possession which undermine or potentially undermine his case which do not fall within the category of documents which must be disclosed. For example, the appellant may have obtained a report from a planning consultant which expresses opinions about the planning merits which are adverse to his case. In all probability that report will not have been disclosed to the local planning authority and it will not have been considered by the local planning authority when it reached its decision to refuse permission.

40. In my judgment there is no obligation upon the appellant to disclose documents which express opinions which are adverse to his case. It does not seem to me that fairness demands that the opponents of a proposal need to know that opinions have been obtained by the appellant which are adverse to the proposal. The local planning authority will have at its disposal all the necessary expertise or the means available to obtain such expertise; it will inevitably be in a position to offer adverse views of a proposed development if such views are justified. No doubt it will have done so -hence its decision to refuse planning permission. Similarly, third parties such as the Claimant in these proceedings, often feel able to express opinions about the planning merits of a proposal. I can see no justification for making it obligatory that an applicant for planning permission should disclose any report which he has obtained which has expressed adverse opinions about the proposed development unless such disclosure becomes an inevitable consequence of a legitimate request for information by the local planning authority. Further, I can think of no reason why any different view of the obligation to disclose this type of document should be taken when an appeal is made against a refusal of planning permission.

41. At first blush it might be thought that fairness does require that the appellant should disclose documents which are factual in content, material to the planning decision and adverse or potentially adverse to the appellant's case. The First Defendant or his duly appointed inspector should be in a position to consider all relevant factual matters when he determines an appeal under section 79 of the 1990 Act. It is common ground in these proceedings that the decision of the First Defendant on a planning appeal is susceptible to be quashed if the First Defendant reaches a decision upon a mistake as to an existing (and established) fact which was material to his decision. If that is so it seems to me that there is a respectable argument that he should be provided with all the relevant facts.

42. That does not necessarily mean, however, that a general obligation of disclosure as contended for in this case should be imposed upon the appellant. In my judgment there are very substantial arguments which militate against such a general obligation. First, in advance of the appeal, the local planning authority can seek and obtain wide-ranging evidence from the appellant. If necessary it can survey the application site. Second the inspector appointed by the First Defendant to determine the appeal has the power to seek further information from the appellant and enter the land which is the subject of the application. Further, and in any event, the local planning authority and interested parties will invariably, between them, have very significant knowledge of all factors likely to be relevant to the determination of the appeal. It is very difficult to imagine circumstances in which factual information exists that is relevant to the planning application in question but yet is unknown to the local planning authority and, further, of such a type and quality that it could not be ascertained by the local planning authority upon reasonable investigation.

43. The instant case is very much in point as it relates to the existence or otherwise of badgers upon the appeal site. The information which the Third Defendant obtained about badger activity was of a quality and type which the Second Defendant could have obtained easily if it had thought it to be relevant to the planning application. Indeed, on one view it did by seeking the views of its Conservation and Development Officer.

44. I have reached the conclusion that fairness does not demand that there should be a general obligation upon the appellant in a planning appeal i.e. applicable in every case in which an appeal is conducted by the written representation procedure to disclose documents which contain facts which are adverse to its appeal.

45. If that is the correct conclusion in relation to documentary evidence it follows in my judgment that no general duty of disclosure can arise in relation to factual information which is not documented. The same process of reasoning as set out above leads me to that conclusion.

46. While I have reached the conclusion that fairness does not demand that a general duty to disclosure adverse facts is imposed upon every appellant in a planning appeal that does not mean that a duty to disclose material facts which are adverse to the appellant's proposals can never arise. It is impossible for me to lay down (or rather more accurately attempt to lay down) general principles about when a duty to disclose adverse factual material might arise. Each case must be considered on its own particular facts since fairness, as between the competing parties to a planning appeal, can only be judged upon the facts which are relevant to the particular case. However, it does seem to me to be possible to identify one class of case when a duty to disclose adverse factual material will, in all probability, arise. I refer to the situation where the appellant has chosen to give voluntary disclosure of a document containing factual material or voluntary disclosure of information in non-documentary form and his failure to disclose other documents or information would have the effect of misleading or even potentially misleading an inspector about the true nature of the disclosed material. In my judgment the appellant cannot "pick and choose" what he discloses if the effect will be that the inspector will be misled about the effect of what has been disclosed.

47. Strong support for this proposition can be derived from the decision in Birds Eye Walls Limited v Harrison [1985] I.C.R 278. This case is concerned with the obligation of disclosure, if any, in the context of proceedings in an Employment Tribunal. The context is analogous, however, since the rules prevailing in Employment Tribunals made no express provision for disclosure of documents. The relevant part of the judgment of the Employment Appeal Tribunal reads:-

"........... The omission from the Rules of any duty of disclosure in the absence of a formal discovery order must, we agree, be presumed to have been deliberate. Nevertheless, the freedom of a party to keep documents up his sleeve must be subject to some limitation to prevent it from being abused as an instrument of fraud or oppression....... We therefore accept the general proposition that no party is under any obligation, in the absence of an order from the [Employment Tribunal] to give discovery in the Tribunal proceedings. That is subject, however, to the important qualification that any party who chooses to make voluntary discovery of any document in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the Tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document........."

48. It seems to me that this principle can apply with equal force in the context of a planning appeal.

49. I stress that this is but one example of a situation in which fairness will probably demand that a duty of disclosure arises. I have chosen to highlight this possibility since, as it seems to me, it is relevant to the facts as they unfolded in the instant case.

Material Factual Errors

50. Earlier in this judgment I recorded that there was consensus between Ms Dixon and Mr Kimblin about this issue. They both accept that an inspector's decision is susceptible to be quashed if it is based on a mistake as to an existing (and established) fact which is potentially material to the decision. They derive that proposition from the decision of the Court of Appeal in E and another v Secretary of State for the Home Department [2004] QB 1044. The crucial passages in the judgment of the Court begin at paragraph 63:-

"63. In our view, [R v Criminal Injuries Compensation Board exp A [1999] 2 AC 330] points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the Claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the Claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.

64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions had been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his Inspector, in ensuring that development control is carried out on the correct factual basis........

65. The apparent unfairness in the Criminal Injuries Compensation Board case [1999] 2 AC 330 was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, "fault" on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault on her own, the Claimant had not had "a fair crack of the whip". .........

66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."

51. In my judgment a mistake of fact by an inspector who is determining a planning appeal which gives rise to unfairness is now established as a head of challenge in an appeal under section 288 of the 1990 Act. There can be no serious dispute about the proposition that a local planning authority has a public interest, shared with the First Defendant through his inspector, in ensuring that the development control is carried out on the correct factual basis. It seems to me that it should also be acknowledged that the appellant shares an interest in achieving that objective.

Application of these principles in this case

a) The Badgers Issue

52. Immediately before the Second Defendant reached its decision to refuse planning permission the Third Defendant sent it the report of Ecology Consultancy Limited which concluded that there was no evidence of badger activity within the appeal site. Although, of course, there is an element of judgment in such a conclusion I am prepared to proceed on the basis that, essentially, the Third Defendant, by its consultants, was asserting an established fact.

53. There is no way of telling whether the report influenced the Second Defendant's decision in any way. The planning committee had before it a comprehensive report from the Second Defendant's Development Manager. That report recorded the views of the Second Defendant's Conservation and Development Officer (see paragraph 5 above). The views expressed by the Conservation and Development Officer were in conflict with the views expressed on behalf of the Third Defendant so far as the presence of badgers upon site was concerned. However the Conservation and Development Officer did not recommend that planning permission should be refused on that basis. His/her recommendation was for the undertaking of further surveys and for the protection (within the development) of the corridor used by the badgers. The Second Defendant's reasons for refusing planning permission were unrelated to the existence of badgers within the site.

54. When the Third Defendant launched its appeal the information available as to the existence of badgers upon the site was that contained within the report of Ecology Consultancy Limited, the information provided by the Second Defendant's Conservation and Development Officer and the representations which had been made by objectors.

55. As is obvious, the Third Defendant obtained further information relating to the presence of badgers upon the site following its instruction of ELMAW on 4 October 2007. It does not seem to me to matter that this organisation was instructed, specifically, in relation to the second application. The information it was providing, potentially, had a bearing upon the application under appeal. During October, November and December 2007 ELMAW provided information to the Third Defendant which confirmed the presence of badgers upon site. However, in those months, in reality it did no more than confirm the views which had been expressed by the Second Defendant's Conservation and Development Officer.

56. Crucially, in my judgment, on 4 January 2008 the Third Defendant's planning consultant wrote a detailed letter to the Second Defendant about the work which had been undertaken by ELMAW. The letter was written in the context of the second planning application but, of course, that part of the letter which dealt with badgers was relevant (if relevant at all) to both the application under appeal and the second application.

57. It is necessary to take stock at this point. The starting date within the 2000 Regulations was the date of the notice of appeal was received. By 4 January 2008 the nine week period specified in Regulation 7(8) had expired.

58. I am prepared to accept that the Third Defendant was obliged to disclose the material which it had received from ELMAW. Its conclusions were in stark contrast to the conclusions which had been reached by the Third Defendant's previous consultants. While I accept that ELMAW's conclusions did no more than confirm the view of the Second Defendant's Conservation and Development Officer nonetheless it was potentially relevant for the inspector to know that the information about this discrete topic was, essentially, agreed. I accept, too, that the Third Defendant's obligation was to disclose the information not just to the Second Defendant but to the inspector. As I have identified above the procedural rules under the 2000 Regulations require the appellant and the local planning authority to provide information to the inspector.

59. It does not seem to me, however, that the Third Defendant's failure to disclose the conclusions reached by ELMAW to the inspector on or about 4 January 2008 as well as to the Second Defendant can possibly lead to the conclusion that what occurred was unfair and the inspector's decision should be quashed. The Third Defendant disclosed the information to the Second Defendant which was actively opposing the appeal. Although the 9 week period had expired it would have been open to the local planning authority to ask the inspector to receive the information and act upon it if it thought it prudent to do so. There was still 17 days or thereabouts before the planned site visit by the inspector. Representations could have been made to the inspector as to why he should act upon the information in reaching his decision. The plain fact is that the Second Defendant had never considered the existence of badgers upon the appeal site to be a reason why it should refuse planning permission and, no doubt, that was its view on 4 January when it received confirmation that the Third Defendant accepted the presence of badgers on site.

60. That is not the end of the point. It is also necessary to consider whether any unfairness arose by reason of the Third Defendant's failure to disclose the information provided by ELMAW directly to the inspector on or about 4 January 2008. In my judgment there was certainly no procedural unfairness. The inspector may have provided that information to the Second Defendant. Nothing turns on that since the Second Defendant was aware of the information. The inspector would not have distributed the information to objectors - or, at least, there was no obligation upon him under the Regulations so to do.

61. In any event, it seems inescapable to me that the attitude of the inspector would have been identical to the attitude he displayed when the information was provided to him on the occasion of the site visit. At the site visit the inspector was provided with such information as was available from ELMAW. The inspector canvassed the view of the officer of the Second Defendant who was present and then decided to take no account of the information since it was provided after the 9 week period specified in Regulation 7(8) of the 2000 Regulations. I find it hard to believe that the inspector's attitude would have been different seventeen days earlier given the overwhelming probability that the attitude of the Second Defendant authority would have been identical.

62. In my judgment, therefore, no basis exists for quashing the inspector's decision on the grounds that the Third Defendant failed to disclose material facts which were adverse to its case. I should say that until 4 January 2008 or very shortly before (and therefore after the 9 week period had expired) there was no detailed information from ELMAW which was capable of being disclosed.

63. The Claimant's alternative submission is that the inspector's decision should be quashed on the grounds that it is vitiated by mistakes as to existing and established facts which were potentially relevant to his decision-making process. The existing and established facts were those facts relating to the existence of badgers on site which were identified in the information provided by ELMAW.

64. The high water mark of this submission is the first part of paragraph 17 of the inspector's decision letter (see my paragraph 17 above). In that paragraph the inspector, essentially, casts doubt upon whether badgers were using the application site at the material time.

65. On the basis of the representations made to the inspector within the relevant 9 week period the inspector's conclusions were justified. I accept that such conclusions would be much more difficult to justify in the light of the information provided by ELMAW.

66. However, in my judgment, at the time when the inspector reached his decision to allow the appeal he knew at the very least that the information provided by ELMAW was contrary in some respects to the previous information supplied by the Third Defendant. That conclusion seems inescapable given Mr Gray's description of the events at the site visit. It seems to me, therefore, that the inspector deliberately chose to ignore the most up-to-date information about the presence of badgers upon the site when he reached his decision to grant planning permission. This was not a case, in reality, in which an inspector was ignorant of material facts because he did not know of them or was misled as to them. Rather he chose not to receive the most up-to-date information available because he considered it had been provided too late.

67. Did the inspector act unlawfully when he chose not to receive the up-to-date information? In my judgment he did not. Regulation 7(8) confers upon an inspector a wide discretion about whether he takes into account information provided to him after the 9 week period has expired. The discretion relates to all kinds of information whether it be factual or opinion. The exercise of the discretion will be susceptible to challenge under section 288 of 1990 Act only if an inspector acts unreasonably or irrationally.

68. In the instant case the information from ELMAW did no more than confirm the view of the Second Defendant's Development and Conservation Officer. The Second Defendant was content for the inspector to ignore the information from ELMAW. In those circumstances I cannot see how the inspector acted unlawfully in reaching the conscious decision that he would not take account of the "late" material.

69. Even if I am wrong in this analysis it is clear from the decision in E that a decision will be quashed only if the mistake has played a material although not necessarily decisive part in the reasoning of the decision maker. In my judgment there is no reason to believe that the mistake must have played a material part in the inspector's decision. The presence of badgers upon the site was never a reason advanced by the Second Defendant for the refusal of planning permission The inspector had the benefit of the objectors' views on this point. He clearly took the view that any planning permission granted would have no effect upon such other statutory protection as existed in relation to badgers. No one has suggested that he was wrong in reaching such a conclusion. It seems to me to be most unlikely, looking at the facts of this case as a whole, that the inspector's mistaken belief (if that what it was) that there was no conclusive evidence of the existence of badgers on site played a material part in his decision.

70. I have reached the clear conclusion that no grounds exists for quashing the decision of the inspector to allow the appeal and grant planning permission in relation to what I have termed "the badgers issue."

71. Even if I am wrong about that, however, the plain fact is that is that the outlier badger sett has been removed in accordance with proper procedures. It seems to me as a matter of discretion that there can be no purpose in quashing the inspector's decision now that the sett has been removed. On any re-consideration of the planning appeal the issue of badgers on site could not be material since none now exist on site.

b) Ownership/control of additional land

72. At the time when the Third Defendant applied for planning permission on 8 May 2007 it neither owned nor controlled any land in the vicinity of the application site. However, in June 2007 the owner of the land at the rear of 267 Gammons Lane granted an option to the Third Defendant to purchase the land and on 31 July 2007 it purchased the land at the rear of both 263 and 265 Gammons Lane. The Third Defendant submitted its notice of appeal on or about 27 September 2007. On the plan which it sent to the planning inspectorate together with the notice it did not shade or edge in blue the additional land.

73. In his supplementary written submissions on behalf of the Third Defendant Mr Gray accepts that the land at the rear of 267 Gammons Lane adjoins the appeal site. He says, however, that he considered that land was not under the control of the Third Defendant since the Third Defendant did not own it. Although the option existed it had not been exercised. If, contrary to his belief, the land to the rear to 267 Gammons Lane should have been identified as being under the control of the Third Defendant Mr Gray asks me to accept that his was a failure of interpretation. There was no deliberate failure on the part of the Third Defendant to disclose a material fact.

74. In her written submissions Ms Dixon asserts that the Third Defendant owned or controlled the land which adjoined the appeal site. As I understand it she bases that assertion upon the proposition that a party who has the benefit of an option has control of the land which is the subject of the option and, of course, it is not disputed that the land to the rear of 263 and 265 Gammons Lane was owned by the Third Defendant.

75. In his written submissions Mr Kimblin proceeds on the assumption that the Third Defendant did control the land at the rear of 267 Gammons Lane but he does not concede the point as a matter of law.

76. It does not seem to me that a person who enjoys the benefit of an option to purchase land necessarily controls that land. For example, his option may be to purchase the freehold interest in an area of land which is subject to a long lease. It might be difficult to say that a freeholder controls land when it is occupied by a lessee who by virtue of his lease has the right to exclusive possession of the land for many years. If, on the other hand, the option to purchase the freehold interest, if exercised, would give the person exercising the option the right to immediate possession of the land it would, obviously, be much easier to conclude that the person was in control of the land.

77. As far as I am aware there is no authority upon the meaning to be given to the phrase "adjoining land owned or controlled by the appellant" contained within a notice of appeal. There are, however, first instance cases which have considered the meaning of the phrase "any land under the control of the applicant" within section 72(1) of the 1990 Act. I need not quote from them. They each stress that whether or not a person controls land is to be determined by an investigation of all the relevant circumstances; the investigation will include consideration of the nature of the interest in the land which the person enjoys but will not be limited to it.

78. I am inclined to the view that the Third Defendant did own or control adjoining land on the facts of this case. I reach this conclusion in particular because I understand that the exercise of the option would create a right to own the freehold interest in the land and confer upon the Third Defendant the right to possession of the land upon completion. On that basis the Third Defendant would have it within its power during the option period to become the owner and take control of adjoining land.

79. On the basis of this tentative conclusion, the Third Defendant should have indicated on the plan submitted to the Planning Inspectorate that it owned and/or controlled the additional land. However, as it happens, I do not think that it is necessary to determine conclusively the meaning of the word control in its context within a notice of appeal or, for that matter, what is meant by the word control in section 72 (1) of the 1990 Act. I say that for this reason. The existence of Third Defendant's option over part of the additional land and the fact of its ownership of the remainder of it should have been disclosed to the inspector by the Third Defendant by virtue of the following sequence of events.

80. In its letter of 19 June 2007 the Third Defendant's planning consultants wrote to the Second Defendant to address objections which had been made by local residents. I referred in paragraph 2 above to the passage in that letter which related to the issue of "Creeping Development" To repeat the planning consultant wrote:-

"It is alleged that the developer is deliberately phasing the development relative to land immediately east of the application site (land at rear of 263-267 Gammons Lane) in order to avoid contributing towards affordable housing. This is simply not the case as the applicant has no control of the neighbouring land and it would therefore be wholly unreasonable for it to be suggested that deliberate phasing is taking place. In any case the current threshold for affordable housing remains 25 dwellings or more and it is not considered that an additional 14 plus units could be achieved on this neighbouring land."

It seems to me that what the Third Defendant's consultant was doing in this part of the letter was (a) asserting that the Third Defendant had no control of the neighbouring land, (b) suggesting, therefore, that the Third Defendant was not deliberately phasing the development and (c) asserting that even if further development was possible the relevant threshold which would trigger the need for the provision of affordable houses could not be met on the neighbouring land taken in conjunction with the appeal site.

81. It was after this letter was written, of course, that the Third Defendant acquired the ownership of part of the additional land. That ownership together with the option gave rise to the clear possibility that development of some kind might take place upon the additional land.

82. It seems to me that against this background fairness did demand that disclosure should be given of the changed circumstances. All the additional land was under the control of the Third Defendant or at the very least it was capable of controlling all that land. That was very different from the situation described in the letter of 19 June 2007 and, at least, potentially relevant to the decision for the inspector. I say that for this simple reason. The Third Defendant had asserted that it would not carry out development upon the additional land because it did not control it; it was relevant to know that inability to carry out development through lack of control was no longer an issue.

83. That does not mean, however, that the failure to disclose the option and the ownership of part of the additional land necessarily means that the inspector's decision should be quashed. A quashing order should not be granted if the Defendants have demonstrated that the inspector's decision would have been the same had disclosure been made.

84. It is not suggested that different or additional conditions would have been attached to the planning permission granted to the Third Defendant had the inspector known of the option and its ownership of part of the additional land. Ms Dixon submits, however, that had the Claimant and the other local residents who were objecting to the grant of planning permission known of the true position they would have had the opportunity to make submissions at least upon the following matters: (a) the need to provide affordable housing (b) the need for an environmental impact assessment (c) the knock-on effects on wildlife and (d) any other impacts of an increased development footprint. She submits that had representations about these issues been made to the inspector there is at least a possibility, which cannot be discounted, that the inspector would have reached the decision that the appeal should be dismissed. Accordingly, she submits that this Court should quash the inspector's decision.

85. I recognise, of course, that if Ms Dixon and/or her Instructing Solicitors had been acting on behalf of the Claimant and/or other objectors at the time when the inspector was considering the appeal, representations about these issues may well have been made. However the Claimant and other objectors were not represented by lawyers or planners at the material time. In those circumstances I regard it as very unlikely that the local objectors would have raised issue (b). Further if issues (c) and (d) were raised at all they would probably have been raised in very general and non-specific terms. I accept, however, that the first issue identified by Ms Dixon - that of affordable housing - might well have formed the basis of further representations since, of course, representations about that issue were made to the Second Defendant in advance of its refusal of the application for planning permission.

86. Be that as it may, it does not seem to me to be crucial as to whether or not the local objectors took these points. Just as importantly, in my judgment, is whether the Second Defendant would have raised the issues and further and in any event, whether the inspector would have regarded such issues as relevant to his decision.

87. There is no evidential basis upon which I can conclude that the Second Defendant would have raised these issues. The Second Defendant is a party to these proceedings. It has known, therefore, of the existence of the option over and the Third Defendant's ownership of the additional land since these issues were raised by amendment in October 2008 at the latest. Yet it has not participated in these proceedings in any way. I appreciate, of course, that the Second Defendant would not have known that the Third Defendant had not identified its ownership of the relevant areas of land upon the plan supplied to the planning inspector but, nonetheless, if the Second Defendant considered that it would have made further or different representations to the inspector had it known the true position relating to the Third Defendant's ownership and the existence of the option I would have expected it to say so. To repeat, I can see no basis upon which I can properly conclude that the Second Defendant would have made representations to the inspector about the issues now raised by the Claimant had it known of the true position as to the option/landownership.

88. That leaves the position of the inspector. As I have indicated the likelihood is that the local residents would have made representations to him about affordable housing. It seems to me that I need to consider his likely reaction to that point and, further, it is necessary for me to consider whether the inspector, himself, would have identified and taken account of the other issues now raised by Ms Dixon.

89. It seems to be common ground that the development plan relevant to the area in which the appeal site is situated required affordable housing to be provided within a housing development of more than 24 dwellings. There is simply no evidence, never mind persuasive evidence, to counter Mr Gray's assertion that even if the appeal site is looked at as part of a larger site including the additional land a development of more than 24 dwellings could not be accommodated. The permission granted in respect of the appeal site is for 11 dwellings. That means that at least 14 dwellings would have to be accommodated upon the remaining area of land. There is no evidence before me which suggests that this can be considered as a reasonable possibility.

90. Ms Dixon counters this argument by asserting that national planning guidance suggests that affordable housing should be provided within developments on a lesser scale than that which is provided for in the development plan. However, there is no evidence that the Second Defendant had ever departed from its development plan and, in my judgment, on an issue of this type the prospect that an inspector would depart from the development plan is remote unless he was provided with cogent reasons so to do by the local planning authority.

91. That leads me to consider whether the inspector would have taken account of the other issues raised by Ms Dixon as summarised above. The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 contain detailed provisions about the circumstances in which an environmental impact assessment is necessary before a decision is taken to grant planning permission for a proposed development. I need not dwell on the detailed provisions. It is sufficient that I record that an environmental impact assessment is necessary if the development falls within the categories set out in Schedule 1 to the Regulations and it is also necessary if the development falls within the category specified in Schedule 2 if the development is likely to have significant effects on the environment by virtue of factors such as its size, nature or location. In the event that an environmental impact assessment is not obtained when such an assessment is required any planning permission granted is susceptible to be quashed.

92. The Claimant accepts that the proposal under appeal, looked at in isolation, did not fall within any category of development specified either in Schedule 1 or Schedule 2 of the Regulations. However the point is made that if the proposal under appeal was considered in conjunction with residential development on the additional land the development as a whole would be within schedule 2 of the Regulations.

93. In R Swale BC ex parte RSPB [1991] 1 PLR 6 Simon Brown J, (as he then was) accepted that if a developer was engaged in the process of slicing up a substantial development proposal into smaller components so as to "defeat the object of the Regulations by piecemeal development proposals" the development as a whole should be considered in order to decide whether an environmental impact assessment was required.

94. It is to be observed that at the date when the Third Defendant applied for planning permission in respect of development of the appeal site it had no legal or beneficial interest, whatsoever, in any part of the additional land. On that basis alone it becomes difficult to see how the appeal proposal was part of a much larger scale proposal which the Third Defendant was slicing into smaller components so as to defeat the object of the Regulations.

95. Further, and in any event no plan was formulated or made public, so far as I am aware, for the development of the additional land at any stage before the inspector allowed the appeal. Certainly, no application for planning permission was made in respect of the additional land.

96. Even on the basis that the inspector had known of the existence of the option and ownership of the remainder of the additional land, therefore, I simply do not see how it would have been open to him to conclude that the Third Defendant was engaged in the task of deliberately slicing up a large development so as to avoid the effect of the Regulations. Put shortly, there was no development scheme for the additional land which could be considered in conjunction with the proposal for the appeal site.

97. I have reached the clear conclusion that the inspector could not lawfully have concluded that an environmental impact assessment was necessary simply on the basis that he knew of the option over and ownership of the additional land.

98. That leads to Ms Dixon's assertion that the inspector would have considered the knock-on effects on wildlife and any other impacts of an increased development footprint consequent upon development of the additional land. These assertions are very general. The most telling point against them is that no development scheme for the additional land had been formulated which the inspector could have assessed.

99. I have reached the conclusion that the reality is that the failure of disclosure in this case had no effect on the decision reached by the inspector. I am satisfied that his decision would have been the same even had disclosure taken place. I would reach the same conclusion if the inspector's want of knowledge of the option /ownership is regarded not as a consequence of a failure to disclose but rather as a mistake of fact. No useful purpose would be served by a re-analysis on that discrete legal basis.

100. Accordingly, I have reached the conclusion that this challenge must fail.

101. I should say for completeness that the grounds upon which the claim was brought raised issues other than those identified above. In oral argument, however, and in her supplementary written submissions, Ms Dixon relied upon the two specific areas of challenge which I have dealt with in detail in this judgment. Although she did not say so expressly I took it from that that she accepted (in my judgment wisely) that if she could not persuade me to quash the planning permission on the grounds discussed above no other grounds existed which would persuade me to take that course. In so far as other grounds were relied upon in writing I content myself with saying that I accept the answers to those grounds which are contained within Mr Kimblin's Skeleton Argument.